Citation Nr: 0001266
Decision Date: 01/14/00 Archive Date: 01/27/00
DOCKET NO. 98-01 959 ) DATE
)
)
On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) in
Newark, New Jersey
THE ISSUES
1. Entitlement to an increased rating for residuals of a
shell fragment wound (SFW) of the middle one-third of the
back with healed scar and Muscle Group (MG) XX involvement,
currently evaluated as 10 percent disabling.
2. Entitlement to an increased (compensable) rating for
residuals of a shell fragment wound (SFW) of the right leg
with Muscle Group (MG) XI involvement.
REPRESENTATION
Appellant represented by: New Jersey Department of
Military and Veterans' Affairs
ATTORNEY FOR THE BOARD
Debbie A. Riffe, Associate Counsel
INTRODUCTION
The veteran served on active duty from April 1943 to October
1945. This case comes to the Board of Veterans' Appeals
(Board) from an October 1997 RO decision which denied
increases in a 10 percent rating for residuals of a SFW of
the middle one-third of the back with healed scar and MG XX
involvement, and a noncompensable rating for residuals of a
SFW of the right leg with MG XI involvement.
FINDINGS OF FACT
1. The residuals of a SFW of the middle one-third of the
back (dorsal/thoracic region) are manifested by no more than
a moderate injury to MG XX and a well-healed scar.
2. The residuals of a SFW of the right leg are manifested by
a moderate injury to MG XI.
CONCLUSIONS OF LAW
1. The criteria for an evaluation in excess of 10 percent
for residuals of a SFW of the middle one-third of the back
with healed scar and MG XX involvement have not been met. 38
U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.73, Code
5320 (1997 and 1999).
2. The criteria for a rating of 10 percent for residuals of
a SFW of the right leg with MG XI involvement have been met.
38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.56, 4.73, Code
5311 (1997 and 1999).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
I. Factual Background
The veteran served on active duty from April 1943 to October
1945.
Service medical records show that on a March 1943 physical
examination for enlistment purposes there were no
musculoskeletal defects and the veteran's skin was normal.
On July 26, 1944, the veteran was wounded in action in
France, sustaining shell wounds of the left posterior chest
and right leg. The wounds were noted to be penetrating and
mild. The veteran underwent a debridement of the wounds, and
a foreign body was removed from the veteran's chest. The
veteran was subsequently evacuated to the 188th General
Hospital in England. An examination there showed a small,
clean superficial wound of the right leg and a 4 inch long
wound over the left chest axillary line that was clean, not
penetrating, and slightly gaping. On July 30, 1944, the
veteran's general condition was noted to be good and his
wounds were dressed clean. On August 19, 1944, it was noted
that the wounds were well-healed. A final hospital summary
stated that the wounds were superficial and healed without
"Lec Closure" and that he was ready for duty. The veteran
returned to duty on August 24, 1944.
On an October 1945 separation physical examination, there
were no musculoskeletal defects and the veteran's skin was
noted to have a 1/2 inch well-healed scar on the right calf,
without abnormalities, and a 3 inch scar on the left back.
The examination report indicated that the veteran had
sustained shrapnel wounds to the right calf and back for
which he was hospitalized in July 1944.
In a March 1946 decision, the RO granted service connection
for a moderate wound of the left back involving MG II and for
a slight, healed wound of the right leg with involvement of
MG XI, assigning ratings of 10 percent and noncompensable,
respectively.
From August to December 1947, the veteran received
physiotherapy for residuals of a gunshot wound of the left
side of the back, specifically for chronic neuritis of the
left 6-10 intercostal nerves due to a scar in the anterior
axillary line. A December 1947 record indicates that the
veteran's condition was improved and that treatment could be
interrupted for the present time, unless his pains should
recur in which case additional treatments would be necessary.
On a January 1948 VA examination, the veteran complained that
his back scar was intermittently painful. On examination,
there was a 3 inch by 3/4 inch well-healed scar on the middle
third of the left side of the back. It was beneath the
scapula, overlying the eighth rib in the posterior axillary
line. The scar was not depressed, adherent, or tender.
There was moderate damage to MG XX, not MG II, and no
atrophy. There was good muscle power and no limitation of
motion or spasm. It was noted that the body cavity was not
penetrated and that there was no nerve, bone, or joint
damage. The veteran had normal chest expansion. There was
also a SFW of the upper third of the right leg with a well-
healed scar the size of a penny on the calf, postero-
medially. The scar was 1 cm. in diameter, insignificant, and
not adherent, tender, or depressed. There was no muscle
damage or bone, joint, or nerve injury. The veteran had
normal sensation and gait. X-rays of the chest and dorsal
spine show in part minimal scoliosis of the upper dorsal
spine with convexity to the left. The diagnoses were scars
of the left back and right calf, secondary to wounds,
asymptomatic.
In an April 1948 decision, the RO denied an increase in a 10
percent rating for residuals of a penetrating shrapnel wound
of the middle one-third of the back with healed scar and MG
XX (previously MG II) involvement, and in a noncompensable
rating for a slight, healed wound of the right leg with MG XI
involvement.
In a February 1997 statement, Richard Salzer, Jr., M.D.,
indicated that the veteran was under his care from 1993 to
1995 for various medical reasons including his back.
In an April 1997 statement, the veteran requested increases
in his service-connected SFW disabilities. He indicated that
he still had shrapnel in his right leg.
In June 1997, the RO requested treatment records from Dr.
Salzer. He did not respond.
On an August 1997 VA examination, the veteran reported that
he was hit by shrapnel in July 1944 and sustained injuries to
the left side of his back. He stated that he was operated on
and healed up very well. He reported that his operation
entailed the removal of a rib before he was sent back to his
unit after his month-long hospitalization. He now complained
that he was unable to sit steadily for more than an hour and
that he usually could manage driving somewhere only for 40 to
50 minutes before he would have to stop and walk around. He
stated that if he stood for a long period of time he needed
support for his back. He reported that he walked one to two
miles a day. When asked to localize his pain, the veteran
pointed first to his lumbar area and then the area where he
had his injury. There was pain between L1 and L3, with some
minimal spasm, on physical examination. The scar on his back
was noted to be about 10 cm. on the lateral left posterior
back. It was well-healed and nontender. Examination of the
lumbar spine showed range of motion of flexion to 80 degrees,
extension to 10 degrees, decreased lateral flexion to 10
degrees to the left and right, and full truncal rotation.
Examination of the right leg showed an indentation, like a
dimple and crease mark, extending about 2 cm. in width. In
the area under the dimple, the veteran still had shrapnel in
his gastrocnemius muscle posteriorly. X-rays of the chest,
kidneys, ureters, bladder, and lumbosacral spine revealed
collapse and destruction of L1 vertebral body and metastatic
disease myeloma. The diagnoses were status post shrapnel
injury with residual muscle impairment in the thoracic area,
injury to the right gastrocnemius muscle of the right leg,
and compression fracture and destruction of L1 vertebral
body.
In an October 1997 decision, the RO denied increases in the
veteran's residuals of a SFW of the middle one-third of the
back with healed scar and MG XX involvement and SFW of the
right leg with MG XI involvement.
In his November 1997 notice of disagreement and January 1998
substantive appeal, the veteran stated that his back
condition was causing more pain and discomfort since the last
VA examination and that his right leg still had shrapnel
fragments and caused him more pain.
On a February 1998 VA examination, the veteran reported that
he sustained a shrapnel injury to his back and right calf
area in 1944 for which he was hospitalized for 45 days and
then returned to regular duty. He stated that after
discharge from service he became a student and then a store
manager for approximately 40 years. He was presently
retired. The veteran complained that he was unable to stand
for long periods of time and unable to drive longer than 40
minutes at a time. On examination, the veteran could dress
and undress normally. His gait, toe walk, and heel walk were
normal. He had difficulty squatting. There was a 4 inch
well-healed scar in the left posterior lateral thorax area
which was tender to palpation. Examination of the
lumbosacral spine showed decreased lumbar curvature and
tenderness. There were no paraspinal muscle spasms. There
was full range of motion. Straight leg raising was positive
on the left side at 40 degrees and on the right side at 35
degrees. The right calf area, posteriorly, had a 1 inch scar
which was nontender to palpation. There was no muscle
atrophy noted. An X-ray of the lumbosacral spine revealed a
complete compression fracture at L1 and severe bony
demineralization. An X-ray of the right tibia and fibula
revealed a metallic foreign body in the upper right calf and
intact bones. The diagnosis was post-traumatic arthritis of
the lumbosacral spine.
In August 1998, the VA examiner in February 1998 was
requested to indicate whether the veteran had muscle atrophy
in the area of the thoracic spine, especially in the area of
the scar. The examiner did not remember.
VA X-rays of the lumbosacral spine in October 1998 revealed
fracture and deformity of L1 with mild listhesis of L1 on L2.
VA X-rays of the tibia and fibula in October 1998 revealed a
small shrapnel fragment adjacent to the proximal tibia and an
osteolytic lesion; there was no acute fracture or
dislocation.
On a February 1999 VA examination, the veteran reported that
he was injured in service by shrapnel which entered his right
leg and lower back. He stated that he underwent an operation
on his lower back and that a rib was cut in order to remove
shrapnel. He reported he had aching pain in the lower back
ever since that time. He stated that he could not stand for
longer than 10 minutes at one time and that he had limited
bending and lifting. He reported difficulty in finding the
right sleeping position. He noticed weakness in the lower
back which fatigued easily. He stated that he did not have
either braces or canes and that he utilized no medications.
He stated that he has not had any further surgery on his
back. Examination of the right lower extremity showed the
veteran's gait appeared normal and the soles of both shoes
had a normal wear pattern. The right lower extremity
fatigued somewhat easily. The veteran reported he could walk
for up to one-half mile without difficulty before he noted a
mild aching pain. There was a 1 inch dimpling in the
posteromedial aspect of the veteran's calf, 11 inches above
the medial malleolus. There was no evidence of atrophy to
palpation or to circumferential measurements 4 inches below
the tibial tubercle. The veteran could heel-and-toe walk
without difficulty. There was no pain to palpation over the
dimpling site. There was no swelling or adherent bone. The
right knee had full and painless range of motion.
Examination of the lower back showed scarring 2 inches in
length on the left lateral aspect of the distal thoracic
spine in the area of the tenth rib. There was no pain to
palpation. The veteran utilized no braces, crutches, or
canes, and he did not take any medication. The veteran
reported that he could not stand for longer than 10 minutes
at a time. Sitting was "okay." The veteran noticed his
lower back to be weak and to fatigue easily. The range of
motion of the lumbar spine was 20 degrees of flexion, 5
degrees of hyperextension, no lateral deviation toward the
right or left, 10 degrees of rotation toward the right, and
15 degrees of rotation toward the left. Straight leg raising
was negative, except for hamstring tightness on the right. A
neurological examination was within normal limits. An X-ray
of the lumbosacral spine revealed severe compression
deformity of the L1 vertebral body, disc space narrowing
noted at T12-L1, and facet joint osteoarthritis at L5-S1.
The diagnoses were post shrapnel injury to the gastrocnemius
of the right leg and degenerative joint disease of the lower
back.
II. Analysis
Initially, it is noted that the veteran's claims for
increased ratings for his residuals of a SFW of the mid back
and a SFW of the right leg are well grounded within the
meaning of 38 U.S.C.A. § 5107(a). That is, he has presented
claims which are plausible. The Board is satisfied that all
relevant evidence has been properly developed and that no
further assistance is required to comply with the duty to
assist as mandated by 38 U.S.C.A. § 5107(a).
When rating the veteran's service-connected disabilities, the
entire medical history must be borne in mind. Schafrath v.
Derwinski, 1 Vet. App. 589 (1991). However, the present
level of disability is of primary concern in a claim for an
increased rating; the more recent evidence is generally the
most relevant in such a claim, as it provides the most
accurate picture of the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55 (1994).
Disability evaluations are determined by the application of a
schedule of ratings which is based on average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A § 1155; 38 C.F.R. Part 4.
A. Residuals of a SFW of the Mid Back
The veteran's service-connected residuals of a SFW of the
back involve the middle back area (i.e, the dorsal/thoracic
area). Recent medical records show he now has a low back
(i.e., lumbar area) disorder; however, the low back disorder
is not service connected and associated impairment may not be
considered when rating the service-connected residuals of a
SFW of the middle back. 38 C.F.R. § 4.14.
The veteran is evaluated for his residuals of a SFW of the
middle one-third of the back under 38 C.F.R. § 4.73,
Diagnostic Code 5320, for injury to muscle group (MG) XX, the
muscles that function to provide postural support of the body
and extension and lateral movements of the spine. These
spinal muscles are the sacrospinalis (erector spinae and its
prolongations in thoracic and cervical regions). Code 5320
contains rating criteria for disabilities involving (1) the
cervical and thoracic region and (2) the lumbar region.
Regarding the dorsal/thoracic area (which is the location of
the veteran's SFW), a moderate disability warrants a 10
percent rating, a moderately severe disability warrants a 20
percent rating, and a severe disability warrants a 40 percent
rating. The veteran's residuals of a SFW of the mid back are
currently evaluated as 10 percent disabling, indicating a
moderate muscle disability in the thoracic region.
In order for an increased rating to be assigned, the veteran
must be shown to have a moderately severe injury to MG XX.
38 C.F.R. § 4.73, Diagnostic Code 5320. It is noted that the
regulations for rating muscle injuries were revised effective
July 3, 1997, while the veteran's claim for an increased
rating was pending. However, there were no substantive
changes to Code 5320. See 62 Fed. Reg. 30235-30240 (1997).
The factors to be considered in evaluating residuals of a SFW
are listed in 38 C.F.R. § 4.56. Information in this
regulation provides guidance only and is to be considered
with all other factors in the individual case. Robertson v.
Brown, 5 Vet. App. 70 (1993). (38 C.F.R. § 4.56 was also
subject to minor revisions, effective July 3, 1997, but there
were no substantive changes to this regulation. See 62 Fed.
Reg. 30235- 30240 (1997).)
"Moderately severe" disability results from through and
through or deep penetrating wounds with debridement or with
prolonged infection or with sloughing of soft parts, and
intermuscular cicatrization. The record must show a
prolonged hospitalization for treatment of a wound of a
severe grade, as well as consistent complaints of the
cardinal symptoms of muscle wounds and evidence of
unemployability because of inability to keep up with work
requirements, if present. Objective findings should include
scar evidence of the missile track through important muscle
groups. There should be moderate loss of deep fascia, or
moderate loss of muscle substance, or moderate loss of normal
firm resistance of muscles when compared with the sound side.
Tests of the strength and endurance of the muscle groups
involved when compared to the sound side should show positive
evidence of marked or moderately severe loss. 38 C.F.R. §
4.56.
"Severe" disability results from through and through or
deep penetrating wounds with extensive debridement or
prolonged infection and sloughing of soft parts,
intermuscular binding and cicatrization. The record must
show a history and complaints similar to those required for a
moderately severe disability, but in aggravated form.
Objective findings include extensive ragged, depressed, and
adherent scars of skin so situated as to indicate wide damage
to muscle groups in track of the missile. Palpation should
demonstrate moderate or extensive loss of deep fascia or of
muscle substance. There may be soft or flabby muscles in the
wound area, and the muscles may not swell or harden normally
in contraction. Tests of strength and endurance may show
positive signs of severe impairment of function. Adaptive
contraction of opposing groups of muscles or adhesion of scar
tissue to bone in an area where bone is usually protected by
muscle is indication of severe disability. 38 C.F.R. § 4.56.
The veteran's residuals of a SFW of the back also includes a
healed scar. Under applicable criteria, a 10 percent
evaluation is warranted for superficial scars that are poorly
nourished with repeated ulceration. 38 C.F.R. § 4.118,
Diagnostic Code 7803. A 10 percent evaluation is warranted
for superficial scars that are tender and painful on
objective demonstration. 38 C.F.R. § 4.118, Diagnostic Code
7804. When the requirements for a compensable rating under a
diagnostic code are not shown, a 0 percent rating is
assigned. 38 C.F.R. § 4.31. Scars may be evaluated for
limitation of functioning of the part affected. 38 C.F.R. §
4.118, Diagnostic Code 7805.
The historical and recent medical records to include the VA
examinations in 1997, 1998, and 1999 show that the veteran
had residual muscle impairment in the thoracic area as the
result of a mild, penetrating SFW to the left posterior chest
in service. Within a month of the injury, the veteran
returned to duty. Following service in 1948, moderate damage
to MG XX was noted, without any evidence of atrophy. There
was no evidence of complaints or treatment of his service-
connected disability from 1948 until 1993 when he was treated
for an unspecified back disorder by Dr. Salzer. Thereafter,
the veteran was examined three times by VA for complaints
regarding his inability to sit steadily, drive, or stand for
long periods of time without rest or support. No atrophy of
muscle was noted. These complaints and findings of the
veteran's SFW more closely approximate the criteria for a
moderate muscle disability. While the veteran's SFW of the
mid back was a penetrating wound requiring debridement, which
is contemplated by a moderately severe muscle injury, the
historical evidence does not show that the veteran's wound
was of severe grade when initially treated, that he was
hospitalized for a prolonged period, that there was a
consistent record of complaint of the cardinal symptoms of
muscle wounds, or that he was unable to keep up with work
requirements following service. Moreover, there is no
objective evidence of marked or moderately severe loss of
muscle strength. Accordingly, the Board finds that the
residuals of a SFW of the mid back are properly rated as 10
percent disabling under Code 5320.
As for the scar residuals, within a month of his SFW injury
of the back (or left posterior chest, as noted in service
medical records) the veteran's wound was noted to be
superficial and well-healed. After service, the veteran's
scar continued to be well-healed, and it showed no signs of
being depressed, adherent, or tender, with the single
exception of the 1998 VA examination wherein the scar was
tender to palpation. This finding was not repeated on the
most recent VA examination in 1999. The evidence as a whole
shows the scar is asymptomatic. Accordingly, the Board finds
that a separate 10 percent rating for a scar under Codes 7803
or 7804 is not warranted.
For the above-stated reasons, the preponderance of the
evidence is against the claim for an increase in the 10
percent rating for residuals of a SFW of the back. Thus, the
benefit-of-the-doubt rule does not apply, and the claim must
be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1
Vet. App. 49 (1990).
B. Residuals of a SFW of the Right Leg
The veteran is evaluated for his residuals of a SFW of the
right leg under 38 C.F.R. § 4.73, Diagnostic Code 5311, for
injury to muscle group (MG) XI, the muscles that function to
provide propulsion in plantar flexion of the foot,
stabilization of the arch, flexion of the toes, and flexion
of the knee. These muscles consist of the posterior and
lateral crural muscles and muscles of the calf, that is,
triceps surae (gastrocnemius and soleus), tibialis posterior,
peroneus longus, peroneus brevis, flexor hallucis longus,
flexor digitorum longus, popliteus, and plantaris. Under
Code 5311, a slight disability warrants a noncompensable
rating, a moderate disability warrants a 10 percent rating, a
moderately severe disability warrants a 20 percent rating,
and a severe disability warrants a 30 percent rating. The
veteran's residuals of a SFW of the right leg are currently
evaluated as noncompensable.
In order for an increased rating to be assigned, the veteran
must be shown to have a moderate injury to MG XI. 38 C.F.R.
§ 4.73, Diagnostic Code 5311. As noted above, the
regulations for rating muscle injuries were revised effective
July 3, 1997, while the veteran's claim for an increased
rating was pending, but there were no substantive changes to
Code 5320. See 62 Fed. Reg. 30235-30240 (1997).
Under the governing regulation, 38 C.F.R. § 4.56, "slight"
(insignificant) disability results from a simple wound of
muscle without debridement, infection or effects of
laceration. The record must show a wound of slight severity
or relatively brief treatment and return to duty, healing
with good functional results, and no consistent complaint of
the cardinal symptoms of muscle injury or painful residuals.
Objective findings should include minimum scar and slight, if
any, evidence of fascial defect or of atrophy or of impaired
tonus. There should be no significant impairment of function
and no retained metallic fragments. 38 C.F.R. § 4.56.
"Moderate" disability results from through and through or
deep penetrating wounds of relatively short track, without
residuals of debridement or of prolonged infection. The
record must show hospitalization for treatment of a wound and
consistent complaints from the first examination forward of
one or more of the cardinal symptoms of muscle wounds
particularly fatigue and fatigue-pain after moderate use,
affecting the particular functions controlled by the injured
muscles. Objective findings should include evidence of
linear or relatively small scars indicating the relatively
short track of the missile through muscle tissue. There
should be signs of moderate loss of deep fascia or muscle
substance or impairment of muscle tonus, and of definite
weakness or fatigue in comparative tests. 38 C.F.R. § 4.56.
The factors in 38 C.F.R. § 4.56 to be considered in
evaluating residuals of a SFW as either moderately severe or
severe are listed in the preceding section pertaining to a
SFW of the back.
The historical and recent medical records to include the VA
examinations in 1997, 1998, and 1999 show that the veteran
had residual muscle impairment as the result of a mild,
penetrating SFW to the right leg in service. Within a month
of the injury, the veteran returned to duty. After service
in 1948, the only noted residual of the SFW was an
insignificant, asymptomatic scar on the right calf. There
was no evidence of complaints or treatment of his service-
connected disability from 1948 until 1997 when the veteran
requested an increase in his disability rating due to
shrapnel that he claimed was still in his right leg.
Thereafter, the veteran was examined three times by VA. In
1997, VA noted injury to the right gastrocnemius muscle of
the right leg. At that time, the right leg showed an
indentation under which there was shrapnel. An X-ray
confirmed the metallic foreign body in 1998. On the 1999 VA
examination, he could heel-and-toe walk without difficulty,
his gait was normal, and there was no pain to palpation over
the dimpling site, although the veteran reported a mild
aching pain after walking one-half mile. Moreover, his right
lower extremity fatigued somewhat easily.
The Board finds that, with application of the benefit-of-the-
doubt rule (38 U.S.C.A. § 5107(b)), these complaints and
findings of the veteran's SFW of the right leg more closely
approximate the criteria for a 10 percent rating under Code
5311 for moderate muscle disability. However, for the same
reasons cited in regard to a SFW of the mid back, the record
does not support a rating in excess of 10 percent under Code
5311. That is, the veteran's SFW of the right leg was a
penetrating wound requiring debridement, which is
contemplated by a moderately severe muscle injury, but the
historical evidence does not show that the veteran's wound
was of severe grade when initially treated, that he was
hospitalized for a prolonged period, that there was a
consistent record of complaint of the cardinal symptoms of
muscle wounds, or that he was unable to keep up with work
requirements after service. Also, there is no objective
evidence of marked or moderately severe loss of muscle
strength. Thus, no more than a 10 percent rating for
residuals of a SFW of the right leg is warranted under Code
5311.
ORDER
An increased rating for residuals of a SFW of the middle one-
third of the back with healed scar and MG XX involvement is
denied.
An increased rating to 10 percent for residuals of a SFW of
the right leg with MG XI involvement is granted.
L. W. TOBIN
Member, Board of Veterans' Appeals